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HQ 955025


April 29, 1994

CLA-2 CO:R:C:M 955025 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9022.90.60

Mr. Randy Willette
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703

RE: Pediatric Immobilization System (Octostop II); NY 860228 revoked; Chapter 90, note 2; HQ 087704; THK America, Inc. v. U.S.; Marubeni America Corp. v. U.S.

Dear Mr. Willette:

This is in response to your letter of September 13, 1993, on behalf of Octostop Enterprises, Inc., requesting reconsideration of NY 860228, dated February 19, 1991, which concerned the classification of the Octostop II Pediatric Immobilization System under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter, "section 625"), notice of the proposed revocation of NY 860228 was published March 30, 1994, in the Customs Bulletin, Volume 28, Number 13.

FACTS:

The article in question is a Pediatric Immobilization System, which is used to maintain a child in a fixed position. You state that while the device had been marketed for other uses, it is currently used exclusively with X-ray apparatus.

In NY 860228, the system was held to be classifiable under subheading 9018.90.80, HTSUS, which provides for parts and accessories of instruments and appliances used in medical, surgical, dental or veterinary sciences. You contend that the system is classifiable under subheading 9022.90.60, HTSUS, which provides for other parts and accessories of apparatus based on the use of X-rays.

ISSUE:

Whether the Pediatric Immobilization System is classifiable as other parts and accessories of apparatus based on the use of X-rays under subheading 9022.90.60, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ."

The headings at issue are as follows:

9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof

9022 Apparatus based on the use of X-rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof

With regard to the classification of parts and accessories for machines, apparatus, instruments or articles of chapter 90, note 2 to chapter 90 provides as follows:

(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 . . . are in all cases to be classified in their respective headings; (b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading . . . are to be classified with the machines, instruments or apparatus of that kind;
(c) All other parts and accessories are to be classified in heading 9033. - 3 -

Because the Pediatric Immobilization System is not a "good included" in any heading of chapter 84, 85, 90 or 91, it is necessary to resort to note 2(b). You contend that the system is a specially designed accessory that is solely or principally used with the apparatus of heading 9022, HTSUS.

The Pediatric Immobilization System is not necessary to enable the X-ray apparatus with which it is used to fulfill its intended function. However, by keeping the child immobile, the system does contribute to the effectiveness of that apparatus. The system is therefore classifiable as an "accessory" under chapter 90. See HQ 087704, dated September 27, 1990.

In a letter dated September 7, 1993, the President of Octostop described the system's components which are specially designed for use with X-ray apparatus, as follows:

The wood is selected without knots so that it does not cast any shadow on X-ray films . . . ; it is light so as to reduce radiation to babies (as such, it complies with FDA requirements of X-ray maximum absorption, and an X-ray compliance label is affixed to the board); the octagonal form of the loops is selected in order to give exact 45 degree angles of views requested for optimal X-ray films; the grove [sic] and support are designed to provide a centered rotation, so the baby patient does not move outside the X-ray beam during examinations. No such design is ever needed in the general medical field.

Moreover, you contend that the product was not sold, nor will it be sold in the future, as a general immobilization device, as demonstrated by the total absence of such reference in the most recent product brochure (1993). Recently, the Court of International Trade stated that "[w]hile an importer's catalogs and advertisements are not dispositive in determining the correct classification of goods under the HTSUS, they are certainly probative of the way the importer viewed the merchandise and of the market the importer was trying to reach." THK America, Inc. v. U.S., Slip Op. 93-207; Marubeni America Corp. v. U.S., 821 F.Supp. 1521, 1528 (1993).

While the system can arguably be used for any medical procedure that requires the child to remain immobile, based on your representations concerning its use, and in light of the current marketing literature, it is our opinion that it is principally used with the apparatus of subheading 9022.90.60, HTSUS.

HOLDING:

The Octostop II Pediatric Immobilization System is classifiable under subheading 9022.90.60, HTSUS, which provides for parts and accessories of apparatus based on the use of X-rays. The corresponding rate of duty for articles of this subheading is 2.1% ad valorem.

In accordance with section 625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director

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